Stubberfield, John Richard v Paradise Grove Pty Ltd [1996] FCA 383

IN THE FEDERAL COURT OF AUSTRALIA) ) QUEENSLAND DISTRICT REGISTRY ) No QG 1 of 1996 ) GENERAL DIVISION ) ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHN RICHARD STUBBERFIELD (Appellant) AND: PARADISE GROVE PTY LTD (Respondent) CORAM: Ryan, Whitlam and Kiefel JJ DATE: 22 May 1996 PLACE: Brisbane MINUTES OF ORDER

THE COURT ORDERS: 1. That the appeal be dismissed. 2. That the appellant pay the respondent's costs of the appeal, such costs to be taxed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) QUEENSLAND DISTRICT REGISTRY ) No QG 1 of 1996 ) GENERAL DIVISION ) ON APPEAL FROM A DECISION OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOHN RICHARD STUBBERFIELD (Appellant) AND: PARADISE GROVE PTY LTD (Respondent) CORAM: Ryan, Whitlam and Kiefel JJ DATE: 22 May 1996 PLACE: Brisbane REASONS FOR JUDGMENT

THE COURT: This is an appeal, curiously by the debtor, against an order by a single Judge of the Court dismissing a bankruptcy petition. The petition was based on a failure by the appellant debtor to comply with a bankruptcy notice founded on a judgment debt of $6,582.68 which arose on an order for costs. The learned primary Judge declined, in the exercise of his discretion, to make a sequestration order because he found that the debtor had more than sufficient assets from which to discharge the judgment debt. Those assets included a sum of $100,000 deposited with the Suncorp Building Society on joint account with his wife. The learned primary Judge noted in the course of his reasons:

The judgment creditor says that, on legal advice, it directed the bankruptcy proceedings be taken against Mr. Stubberfield to enforce the costs order because the judgment creditor could not execute on that order against assets owned by Mr. Stubberfield jointly with his wife and because Mr. Stubberfield has persistently refused to pay the amount of the costs. He does not challenge what the judgment creditor says, through its director, as to its reasons for pursuing bankruptcy proceedings against him. I accept that the prosecution of bankruptcy proceedings is an act of a creditor who believes that no other avenue is open to it to recoup payment of the not insignificant debt owing by Mr. Stubberfield. After examining several authorities, including Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596, Re Stirling; Ex parte Webb Ross & Co [1990] 1 NZLR 569 and Trojan v Corporation of Hindmarsh (1987) 16 FCR 37, the learned primary Judge considered various forms of enforcement of the judgment debt which were available to the petitioning creditor as alternatives to bankruptcy proceedings. He adverted to the writ of elegit available under O.47 r.3 of the Rules of the Supreme Court of Queensland and possible appointment by way of equitable execution of a receiver of Mr Stubberfield's half share of interest receivable from time to time on the money at deposit with the Suncorp Building Society. His Honour rejected an argument that the costs order and the taxing officer's certificate pursuant to it, which together gave rise to the judgment debt on which the bankruptcy notice was based, did not amount to a "final order" within the meaning of s. 40(1)(g) of the Bankruptcy Act. By his notice of appeal which was amended by leave at the commencement of the hearing of the appeal, the appellant debtor, who appeared in person, has contended that the judgment below should be varied to include the following declarations: